Zivotofsky II and the Vesting Clause Theory of Presidential Foreign Relations Power

I have a paper coming out in a few weeks on Zivotofsky IIbut want to raise an issue in the case here that I excluded from that paper. The issue is the Vesting Clause as a residual source of presidential power.

In his debate with Madison over the constitutionality of Washington’s neutrality proclamation, Hamilton (as Pacificus) argued that Article II’s unqualified vesting of “the executive Power” in the President confers all traditionally executive foreign relations powers not specifically allocated elsewhere (such as the Congress’s power to declare war or the Senate’s role in treatymaking). In his Youngstown concurrence, Justice Jackson dismissed the argument by noting that if it is correct, “it is difficult to see why the forefathers bothered to add several specific items, including some trifling ones”—notably, the Reception Clause. Modern scholars have tried to revive the theory, and the literature on it is now robust. (The leading proponents of the theory are Ramsey and Prakash, and the latter has a new book on the general topic; leading critics include Bradley and Flaherty.) But though the Supreme Court has relied on the Vesting Clause outside the foreign relations context as a source of presidential power (most notably, in the removal context), and has used the clause as the peg on which to hang executive foreign relations powers developed by historical practice, it has never squarely (to my knowledge) interpreted the Clause as a source of residual foreign relations powers.

The Court in Zivotfsky II chose not to analyze the Vesting Clause because it believed the “specific Clauses” in Article II answered the recognition question. The four most conservative Justices on the Court, however, seemed to disagree about the Clause’s meaning and relevance. Justice Thomas’s concurrence embraced Hamilton’s theory in a full-throated way, largely following Ramsey and Prakash. But to my surprise, Justice Scalia’s dissent, joined by the Chief Justice and Justice Alito, appeared to throw cold water on the theory. After taking issue with Justice Thomas’s conclusion that Congress lacked Article I power to issue or regulate the content of passports, as well as Thomas’s narrow reading of the Necessary and Proper clause(!), Scalia stated:

The combination of (a) the concurrence’s assertion of broad, unenumerated “residual powers” in the President, see ante, at 2–9; (b) its parsimonious interpretation of Congress’s enumerated powers, see ante, at 13–17; and (c) its even more parsimonious interpretation of Congress’s authority to enact laws “necessary and proper for carrying into Execution” the President’s executive powers, see ante, at 17–20; produces (d) a presidency more reminiscent of George III than George Washington.

Scalia’s charge that Thomas’s Executive is reminiscent of King George is almost exactly the one that Madison (as Helvidius) made of Hamilton's Executive. The basis for Scalia’s charge is mostly Justice Thomas’s reading of Article I, but Scalia also seems to think little of the Vesting Clause reading of residual foreign affairs power as well (though his opinion does not address the issue except in the passage above). Any hint of criticism of the Vesting Clause argument by Scalia is significant, since he and his two dissenting colleagues are fans of the clause as a source of presidential power in the removal context. (See here and here and here.) The Justices in the majority in Zivotofsky II are unlikely to take a more charitable view of Hamilton’s Vesting Clause argument than Scalia. Justice Kennedy has joined opinions that rely on the Vesting Clause in the removal context, but consistent with what he wrote in Zivotofsky II, has also stated that claims for presidential power are stronger in cases “where the Constitution by explicit text commits the power at issue to the exclusive control of the President.” Justices Breyer, Ginsburg, and Sotomayor have given short thrift to the Vesting clause argument in removal context, and are unlikely to view it more charitably as a source of unenumerated foreign relations powers. Justice Kagan has not yet (I think) joined an opinion that turns on the Vesting clause, but her academic writing on the topic would not lead one to think she views the clause as a source of broad unenumerated power.

If Justice Scalia’s dissent is an indication that he and his co-dissenters are skeptical of the Vesting Clause theory of residual foreign relations powers – and I think it is such an indication, though I acknowledge it as a weak one – then it is very hard to see any future for Hamilton’s theory on the Court. It is also hard, more generally, to see bright prospects on the Court for originalism as a method of constitutional interpretation in foreign affairs when originalism’s two greatest proponents, Justices Scalia and Thomas, disagree so sharply about the source and scope of the President’s and Congress’s foreign relations powers.

One attraction of the Vesting Clause as a source of residual foreign relations powers is that, to the extent valid, it provides a textual basis in Article II for the vast array of presidential powers that the President has in fact exercised, with increasing robustness, since the beginning. But obviously, the Court’s failure to embrace the Vesting Clause as a source of residual presidential powers has not adversely affected the growth of these powers, which courts have found other ways to uphold (in the relatively few cases in which judicial review has mattered). Justice Jackson threw cold water in the Vesting Clause argument in Youngstown but nonetheless insisted:

[B]ecause the President does not enjoy unmentioned powers does not mean that the mentioned ones should be narrowed by a niggardly construction. Some clauses could be made almost unworkable, as well as immutable, by refusal to indulge some latitude of interpretation for changing times. I have heretofore, and do now, give to the enumerated powers the scope and elasticity afforded by what seem to be reasonable, practical implications, instead of the rigidity dictated by a doctrinaire textualism.

This has been the approach of the Supreme Court as well. And moreover, the Court has long relied on historical practice (which generally favors presidential power) as a basis for discerning the presidential powers conferred by Article II. So maybe a dim future for the Vesting Clause theory of residual powers in the Supreme Court is of little significance outside the Academy.

Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.